Staff Neglect

As more senior citizens take up residence in elder care facilities and nursing homes, the incidents of elder abuse are continuing to increase. Elderly individuals are more vulnerable to physical and psychological mistreatment, financial fraud, and sexual abuse from all levels of caregivers who provide services for them. But the national trend appears to be growing.

Staff Neglect or Elder Abuse Is Growing in Prominence in Nursing Homes Across the Country

One of the fastest growing forms of elder abuse is staff neglect, in which the personnel and employees of nursing homes and care facilities fail to provide for the basic required needs of each individual patient, with the failure to do so being considered neglect. Consider the following real-life examples:

A poorly-trained nursing home employee dropped an elderly woman while transferring her from a toilet to her wheelchair, causing a fracture to the woman’s femur.
An untrained and unskilled employee of an in-home geriatric services provider dropped a 93-year old woman in her home, causing a hip fracture.
Hospital staff turned the volume down on an alarm, and as a result, no one heard the alarm when an elderly woman’s trachea tube became dislodged. The woman died shortly thereafter.
An 82-year old Alzheimer’s patient who was deemed to be a high risk for falls was improperly monitored by a nursing home staff that did not receive proper training. The patient fell shortly after taking up residence in the nursing home and died as a result of complications from the fall.

These examples depict situations in which staff members of the care facilities and hospitals did not purposely create an abusive situation, but in which a staff member’s neglect nonetheless led to a severe injury.

Differentiating between Abuse and Neglect in Suspected Incidents of Malfeasance by a Staff Employees of Nursing Homes

Neglect differs from outright abuse. Staff neglect occurs when, due to lack of proper training or inadequate attention to the heightened vulnerability of elderly patients, staff members fail to provide adequate protection against risks that present a greater likelihood of injuries in an elderly population. Further examples of staff neglect include failure to attend to an elderly person’s oral or dental care, not providing adequate motion exercises, not changing residents each time they are wet after an episode of incontinence, failure to provide regular baths and to meet daily hygiene requirements, and moving an elderly patient without assistance when that movement is more properly done with a two-person transfer.

As these examples suggest, staff members who are charged with providing care for elderly individuals need to be attuned to their extra or special needs. The level of care that is required when attending to an elderly individual is higher than for a less vulnerable person. If a hospital or care facility fails to provide training to sensitize its staff to this heightened level of care, that hospital or facility may be legally and financially responsible for injuries that are caused by staff neglect.

Employers, Insurers, and Others May Also Potentially Be Liable for Incidents of Staff Neglect Perpetrated by Nursing Home Employees

The employer-employee agency relationship between employees and hospitals or care centers shifts liability for staff negligence up to the level of the employer. Three factors within that relationship are required before the hospital or care center will be liable for staff neglect:

Does the hospital employ the staff member?
Was the staff member fulfilling a job duty when the elderly individual was injured
Did another independent party have control over the staff member’s actions at the time of the injury?

The interplay between the first and third factors is often the most critical element in extending liability for staff neglect to a hospital or care center. Many medical service providers use staffing firms to fill in gaps in their employee schedules. A staff member who is employed by a staffing firm and not the hospital does not have a direct employee relationship with the hospital, which may excuse the hospital from liability for that staff member’s neglect. In this type of situation, an elder law attorney who is familiar with hospital and care center staffing policies and procedures will be better able to sort out each party’s relative liability and to determine which party bears the financial and legal responsibility for an elder individual’s injuries. Please consult with an experienced elder attorney if you have questions or require additional information about staff neglect issues.

References:

http://www.americanbar.org/content/dam/aba/migrated/aging/about/pdfs/neglect_of_older_persons.authcheckdam.pdf

http://www.ncbi.nlm.nih.gov/books/NBK98786/